)u-23-08 02:49pm From—ATTORNEY GENERAL/EES

6146441926

1-072 P.002

F-190 o7

IN THE COURT OF COMMON PLEASSENECA COUNTY, OHIO CD

r'l

STATE OF OHIO, ex. reJNANCY H. ROGERSATTORNEY GENERAL OF 01110

Plaintiff,

CASE NO: 07-CY-0694

JUDGE STEVEN SIJUFF

N.)

1.)

vs. CONSENT ORDER AND FINALJUDGMENT ENTRY

SUNNY FARMS LANDFILL LLC, et al

Defendants.

The Complaint in the above-captioned matter having been filed, and Plaintiff State of

Ohio, by its Attorney Gñeral, Nancy H. Rogers ("Plaintiff' or "State"), and Defendants Regus

Industries, LLC ("R.egus") and Sunny Farms Landfill, LLC ("SFLF") (collectively referred to as

Defendants") having consented to the entry of this Order;

NOW THEREFORE, without trial of any issues of fact or law, without admission of any

issues of law, liability or fact, and upon the consent of the parties hereto, it is ADJUDGED,

ORDERED, AND DECREED as follows:

I. JURISDICTION AND VENUE

1 * This Court has jurisdiction over the parties and the subject matter of this action

pursuant to Chapters 3704, 3714 and 3734 of the Ohio Revised Code ("RC."). Venue is proper

in this Court. Solely for the purposes of this Consent Order and the underlying Complaint, and

without admission of any allegation contained therein. Defendants do not contest that the

Complaint states a claim upon which relief can be granted against Defendants.

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II. PARTIES

2. Defendant Sunny Farms Landfill, LLC is an Ohio Limited Liability Company

engaged in the business of solid waste ("MSW") and construction and demolition debris

("C&DD") disposal, and owns and operates the Sunny Farms Landfill (the "Facility"). The

Facility is a sanitary landfill facility located at 12500 West County Road 18, Fostoria, Seneca

County, Ohio.

3. Defendant Regus Industries, LLC is a New York Limited Liability Company that

owned 100% of Sunny Farms Landfill, LLC until January 1, 2008 and has engaged in the

business of solid waste and construction and demolition debris disposal.

4. On January 2, 2008, Live Earth, LLC purchased 100% of Sunny Farms Landfill,

LLC from Regus Industries, LLC.

5. The provisions of this Consent Order shall apply to, and are binding upon, the

Parties to this action, their successors in interest, and, in accordance with Rule 65(D) of the Ohio

Rules of Civil Procedure, their officers, agents, employees and those persons in active concert or

participation with them.

6. Defendants shall provide a copy of this Consent Order to any person that it

employsat the Facility who is responsible for, or oversees, the acceptance, management andior

disposal of waste at the Facility. Defendants shall ensure that any agreement made with any

person it employs to operate or conduct work at the Facility, or for services or work related to

This Consent Order, expressly provides that the services or work shall be performed in

accordance with this Consent Order and with RC. Chaptcrs 3704, 3714, 3734 and the

regulations promulgated thereunder.

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Ill. SATISFACTION OF LAWSUIT AND EFFECT OF ORDER

7. The State has alleged that Defendants have violated numerous provisions of Ohio

law, including but riot limited to R.C. Chapters 3704, 3714, 3734 and Ohio Administrative Code

("Ohio Adm. Code") Chapter 3745-27, in connection with the operation of the Facility.

Defendants deny all such allegations. The parties have agreed to resolve the disputed issues in

this matter without adjudication of any issues of fact or law- The entry of this Consent Order

shall constitute lull satisfaction of any civil and administrative liability of Defendants, and their

successors in interest and assigns, for all alleged violations associated with the operation of the

Facility through the date of entry of this Consent Order, including the violations alleged in the

State's Complaint.

8. Except as otherwise provided in paragraphs 9-12 of this Consent Order,

compliance with the terms of this Consent Order shall constitute full satisfaction of any civil and

administrative liability of Defendants and their successors in interest and assigns for all

violations with which Defendants have been cited in connection with the operation of the Facility

through the date of the entry of this Consent Order, including the violations alleged in the State's

Amended Complaint. The parties agree further that the entry of this Consent Order and

cohipliance with the terms of this Consent OrdeT shall resolve the alleged violations referenced

above and place Defendant SFLF on a legally enforceable schedule and continued compliance

with applicable environmental laws and rules will result in compliance with the environmental

laws of Ohio and other jurisdictions for purposes of the issuance of future licenses and/or permits

for the Facility

9. Nothing in this Consent Order shall be construed to limit the authority of the State

to seek relief from Defendants for: (A) claims or violations not referenced in the State's

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Amended Complaint; (B) any violations arising out of acts or omissions first occurring after the

effective date of this Consent Order; or (C) claims under the Comprehensive Environmental

Response, Compensation and Liability Act, as amended, 42 U.S.C. §9601 et. seq or R.C.

§3734.20 through 3734.27 for any emergency, removal, remedial, corrective actions, or natural

resource damages. Defendants retain all rights, defenses, and/or claims they may legally raise to

the extent that the State seeks further relief from them in the future, or in any action brought to

enforce the terms of this Consent Order, except that they shall not assert, and may not maintain,

any defense or claim based upon the principles of waiver, resjudicara, collateral estoppel, issue

preclusion, claim splitting, or other defenses based upon any contention that the claims raised by

the State in subsequent proceedings were or should have been brought in the instant case.

10. Entering into this Consent Order, the Consent Order itself, or the taking of any

action in accordance with the Consent Order and/or any work performed at the Facility does not

constitute an admission of any liability, wrongdoing or misconduct on the part of Defendants,

their officers, employees or agents, and this Consent Order shall not be admissible into evidence

in any proceeding for the purpose of making any inference of liability, wrongdoing or

misconduct on the part of Defendants, their officers, employees or agents, except in a contempt

action by Plaintiff for-non compliance with this Consent Order.

11 Nothing herein shall be construed to relieve Defendants of their obligation to

comply with all applicable federal, state, or local statutes, regulations, or ordinances, including

but not limited to any applicable permit requirements thereunder.

12. Nothing in this Consent Order shall constitute or be construed as a satisfaction of

lawsuit, release, or a covenant not to sue regarding any claim alleged in the Complaint, or any

other claim or cause of action, against any person, firm, trust, joint venture, partnership,

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corporation, association, or other entity not a signatory to this Consent Order for any liability

they may have arising out of, or relating to, the Facility.

IV, PERMANENT INJUNCTION

13. Except as provided in Section V below, Defendant SFLF is ordered and enjoined

to comply with R.C. Chapters 3704, 3714, 3734 and the rules promulgated thereunder, including

the applicable provisions of Ohio Adm. Code Chapter 3745-27 in connection with the operation

of the Facility.

V. INJUNCTIVE RELIEF AND COMPLIANCE SCHEDULE

FACILITY OPERATION

14. Within five (5) days after Defendant SFLF's receipt of entry of this Consent

Order, Defendant SFLF shall:

A. Initiate the process for obtaining the approvals necessary for theinstallation of a scale designed to allow all rail cars hauling all wastereceived at the Facility to pass over and be weighed. Defendant SFLFshall complete the installation of this scale within 120 days of the receiptof all approvals necessary for the scale installation project, and shallmaintain the scale thereafter.

B Operate and maintain two additional scales at the Facility: one to weigh allhauling and disposal vehicles entering the Facility from off-site; and oneto weigh all vehicles hauling C&DD rail waste from the rail car unloadingarea at the Facility to the working face of the landfill.

C. For purposes of incoming rail cars containing both MSW and C&DD railwaste, calculate the weights of the materials disposed of at the Facility asfollows: (i) the weight of all C&DD rail waste shall be determined byweighing all vehicles hauling C&DD rail waste from the rail car unloadingarea at the Facility to the working face of the landfill; (ii) the weight of allMSW rail waste shall be determined by subtracting the weight of allC&DD rail waste (unloaded from a given rail car and hauled by truckfrom the rail unloading area at the Facility to the working face of thelandfill) from the original incoming weight of overall waste volume in therail car. For purposes of incoming rail cars containing only MSW railwaste, the weight of the incoming MSW rail waste shall be based solelyon the original incoming weight of overall waste volume in the rail car.

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D. Complete the original daily log form at the Facility each day;

E. Complete each entry on the daily log form for C&DD rail waste acceptedat the Facility within one half (1/2) hour after each truck of incomingC&DD rail waste has been weighed;

F. include an attestation, signed and attested to by a "key employee" (as theterm "key emp)oyee" is defined in R.C. Chapter 3734) who was at theFacility that day, on each daily log form that the form is completedaccurately and the information contained and conveyed therein complieswithR.C. Chapters 3734 and 3714 and this Consent Order;

0,

At a minimum, document all rail-waste that Defendant SFLF is attemptingto characterize as C&DD through the following procedure:

(1) The proposed C&DJ) rail-waste shall be off-loaded from incomingrail cars via a tined hydraulic excavator grapple attachment thatutilizes clamping tines to lift and remove the material from therail car.

i) When the proposed C&DD waste is lifted out of the railcar, it shall be placed into the appropriate truck forweighing, classif'ing, and disposal at the Facility.

ii) Waste that cannot be removed and/or will not remain in thetiried hydraulic excavator grapple attachment shall not beclassified and/or disposed of as C&DD at the Facility.

iii) Waste shall not be classified until it passes over the scale.The ability to remove waste from a rail car using tinedhydraulic excavator grapple attachment does notautomatically qualify the waste as C&DD.

J. Not classify as C&DD any waste removed from rail cars with a bucket orbucket like apparatus

I. Notwithstanding any arguments to the contrary regarding the nature of thewaste, not classify any "pulverized debris," as that term is defined in OhioRevised Code Section 3714.01(I), as C&DD

J. Not classify any solid waste as C&DD.

K. Notwithstanding any arguments to the contrary regarding the nature of thewaste, classify all "pulverized debris," as that term is, defined in OhioRevised COde Section 3714.01(I), as MSW. Notwithstanding theforegoing, the Facility must comply with the disposal restrictionsidentified in Ohio Adm. Code 3745-27-19(E)(8);

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L. If the Ohio EPA or the Seneca County Health Department disagrees withthe determination made by Defendant SFLF that a particular truck load ofrail-waste meets the definition of C&DD or other material under Ohio law,in accordance with Paragraph 15 below, the designation of the waste shallbe in accordance with the Ohio EPA's or Seneca County HealthDepartment's designation.

15, Within forty-five (45) days of entry of this Consent Order, Defendant SFLF shall

submit a plan to Ohio EPA, for approval, to take photographs of the rail-waste designated as

C&DD. This plan shall include, but is not limited to, type of photo, distance from waste that

photo is taken, lighting for photo, scale of waste in photo, and depth into the waste that the photo

is taken.

A.

Ohio EPA shall respond to Defendants submission in a reasonable amountof time.

Defendant SFLF shall implement the plan upon approval by the Director.

C. At least two (2) photograph(s) per truck of C&DD rail-waste that has beenoff-loaded from incoming rail cars, one (1) of which shall depict both (i)the rail-waste in the truck in which it is being hauled to the scale and theworking face, and (ii) an identifier on the truck in question, and one (1) ofwhich shall depict the rail-waste in the truck after it has been designated asC&DD, which photographs shall be taken in conformance with thephotograph plan that has been approved by the Ohio EPA.

D. Include an attestation, signed and attested to by a Facility employee that isresponsible for, and has been specifically trained to oversee, thedesignation of all incoming rail-waste as eitherC&DD or MSW, who wasat the Facility that day, that the documentation submitted in accordancewith Paragraph 1t above complies with the specification containedtherein.

E. Send the documentation required in Paragraph14 to the Ohio EPANorthwest District Office ("NWDO") and to the Seneca County HealthDepartment once per week, such that the documentation in questionarrives at the agencies every Tuesday (or the first business day thereafter ifthe given Tuesday is a holiday) and covers the entire preceding week.

16. Ohio EPA or the Seneca County Health Department may, at their discretion,

disagree with Dfcndant SPLF's determination made pursuant to Paragraph 14. Any such

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disagreement regarding a waste designation made by Defendant SFLF shall be reasonably

supported by the Ohio EPA or the Seneca County Health Department and must be made within

thirty (30) days of the date the waste photos and daily logs are received at NWDO or the Seneca

County Health Department respectively. In evaluating any determination made by Defendant

SFLF pursuant to Paragraph 14, the Ohio EPA or the Seneca County Health Department shall

review any and all documentation received from Defendant SFLF concerning the origin and

nature of the waste at issue. When notified of a disagreement by the Ohio EPA or the Seneca

County Health Department, Defendant SFLF shall have seven (7) days to either (a) redact the

incorrect designation on the original daily log, replace it with the corrected designation, and

remit the appropriate fees, including late fees if applicable, in accordance with Ohio law; or (b)

refer the disagreement for resolution pursuant to the Dispute Resolution provisions outlined in

Section XI of this Consent Order. The parties acknowledge and agree, however, that during the

pendency of the resolution of any disagreement raised by the Ohio EPA or the Seneca County

Health Department, Defendant SFLF shall not be considered to be in violation of this Consent

Order and/or any otherwise applicable Ohio statute or rule, and no stipulated penalties shall be

due and payable under Section VII of this Consent Order, except and until the events described

in Section XI, Paragraph 54 occur.

17. Ohio EPA and the Seneca County Health Department reserve the right not to view

each and every photo submitted by Defendant SFLF. The fact that Ohio EPA and/or the Seneca

County Health Department do not send a letter pursuant to Paragraph 16, above, shall not be

construed as an acknowledgement of proper waste characterization and fee payment.

Notwithstanding the foregoing, nothing in this paragraph shall alter or extend the time period

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established in Paragraph 16 for notifying Defendant SFLF of a disagreement with respect to any

determination made by Defendant SFLF pursuant to Paragraph 14 above.

18. On the Tuesday after Defendant SFLF's receipt of entry of this Consent Order

and each subsequent Tuesday thereafter, Defendant SFLF shall submit all waste photos and the

daily log forms for the previous calendar work week to the Ohio EPA NWDO and to the Seneca

County Health Department on a compact disc ("CD") in the form of EXCEL spreadsheets or

another agreed upon electronic format.

In the event a Tuesday falls on a holiday, Defendant SFLF shall submit the daily log

forms for that previous workweek to the Ohio EPA NWDO and to the Seneca County Health

Department on the Wednesday following the Tuesday holiday.

19. Upon Defendant SFLF's receipt of entry of this Consent Order, Defendant SFLF

shall allow representatives of Ohio EPA anchor the Seneca County Health Department

reasonable access to the Facility, at reasonable times, in order to determine compliance with R.C.

Chapters 3704, 3714, and 3734, this Consent Order, and all other Ohio environmental laws and

rules. Defendant SFLF shall not prevent delay, or inhibit such representatives from conducting

an inspection of the Facility.

20. Nothing in this Consent Order shall be construed to, limit the statutory authority of

the Director of Ohio EPA ("Director"), or his authorized representatives, to enter at reasonable

times upon any private or public property, real or personal, to inspect or investigate, obtain

samples and examine or copy any records to determine compliance with R.C. Chapters 3714 or

3734.

21. Defendant SFLF shall only accept waste onto the Facility property, operate the

Facility, and dispose of waste at the Facility within the hours specified in the pertinent licenses,

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permits and/or agreements governing the operation of the Facility. Notwithstanding the

foregoing, nothing in this Paragraph shall limit when rail cars may be delivered to the Facility,

provided that such rail cars are unloaded solely within the hours specified in the pertinent

licenses, permits and/or agreements governing the operation of the Facility.

22. Upon Defendant SFLF's receipt of entry of this Consent Order, Defendant SFLF

shall make all original daily log forms available to Ohio EPA and the Seneca County Health

Department for inspection at any reasonable time.

23. Within sixty (60) days after Defendant SFLF's receipt of entry of this Consent

Order, Defendant SFLF shall construct and maintain one observation deck that allows

representatives of Ohio EPA and/or the Seneca County Health Department a close, safe, and

unobstructed view of the trucks hauling the incoming C&DD rail-waste that is accepted for

disposal at the Facility. Defendant SFLF shall position the observation deck in such location so

as not to place those representatives of Ohio EPA or the Seneca County Health Department

gaining access to and using the observation deck in an unsafe situation.

24. Within thirty (30) days after Defendant SFLF's receipt of entry of this Consent

Order, Defendant SFLF shall construct and maintain thereafter all access roads at the Facility in

such a fashion to support all waste hauler traffic to andfiorn the working face. All roads

constructed within the horizontal limits of waste placement, used for hauling waste to the

working face, shall comply with Ohio Adm. Code 3745-27-08(D)(1 8). Empty vehicles, owned

and operated by Defendant SFLF, may use roads that do not comply with Ohio Adm. Code

3745-27-08(D)(l 8) when leaving the working face. Additional improvements may be needed to

ensure access is provided to all areas of the Facility necessary. for proper operation and

maintenance of the Facility.

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25. Within fifteen (15) days after Defendant SFLF's receipt of entry of this Consent

Order, Defendant SFLF shall manage leachate at the Facility in accordance with Ohio Adm.

Code 3745-27-19(K).

26. Within thirty (30) days after Defendant SFLF's receipt of entry of this Consent

Order, Defendant SFLF shall send a letter to the Ohio EPA and the Seneca County Health

Department documenting that the leachate level indicator on the outside of the leachate storage

tank has been repaired so the level of the leachate can be monitored during inspections

conducted by Ohio EPA and/or the Seneca County Health Department.

A. Thereafter Defendant SFLF shall maintain the leachate level indicator onthe outside of the leachate storage tank and keep said indicator in propergood working order.

27. Within thirty (30) days after Defendant SELF's receipt of entry of this Consent

Order Defendant SFLF shall send a letter to the Ohio EPA and the Seneca County Health

Department documenting that a float switch with an alarm has been installed on the leachate

storage tank for the rail unloading building and is being properly maintained. Defendant SFLF

shall pump leachate from this storage tank once the alarm is triggered or more often as needed.

A. Thereafter Defendant SELF shall maintain the float switch with alarm onthe leachate storage tank and keep said float switch in proper goodworking order.

28. Within thirty (30) days after Defendant SFLF's receipt of entry of this Consent

Orders Defendant SFLF shall retrofit the fleet of waste hauling trucks such that solid waste,

C&Dl) and other material being hauled remains within the capacity of the truck until Defendant

SFLF tips the truck at the working face.

A.

Thereafter Defendant SFLP shall maintain the retrofitting and keep saidretrofitting in proper good working order.

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29. Within sixty (60) days after Defendant SFLFs receipt of entry of this Consent

Order, Defendant SFLF shall submit alteration requests that update the design of the

unconstructed portions of the Facility so that the design is consistent with the design standards

established in Ohio Adm. Code 3745-27-08. Defendant SELF shall incorporate and respond

directly to Ohio EPA's letter and accompanying attachment dated January 26, 2006 that outlines

Defendant SFLF's deficiencies to its March 2, 2004 report entitled "Ten Year Engineering

Design Analysis." The alteration requests shall be submitted as an addendum to the response.

If any of these alteration requests are found to be deficient, a deficiency letter will be

issued by Ohio EPA. Defendant SFLF shall respond to any and all deficiencies within forty-five

(45) days of receipt of a deficiency letter from the Ohio EPA, unless an extension of the time for

response has been provided by the Ohio EPA.

GROUND WATER INVESTIGATION

30. Within sixty (60) days after Defendant SFLF's receipt of entry of this Consent

Order, Defendant SFLF shall:

A. Provide documentation verifying that an assessment well (MP-29A) wasinstalled west of MP-20A in November of 2007, and install one (1)additional well to the east of MP-20A and one (I) additional well to thenorth of MP-26A to determine the width(s) of the plume(s), and

B. Install an appropriate number of additional wells downgradient of the 1.

contaminated wells in the MP-20A and MP-26A area to evaluate anddelineate the rate, extent and concentration of waste-derived constituentsin the groundwater.

31. Within one hundred twenty (120) days after Defendant SFLF's receipt of entry of

this Consent Order, Defendant SFLF shall conduct any On-site investigation needed to determine

the full rate, extent and concentration of all constituents, including arsenic and nickel, identified

in the operating record in accordance with Ohio Adm, Code 3745-27-1 0(E)(5)(c) in ground

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water such that Defendant SELF demonstrates compliance with Ohio Adm. Code 374527

I 0(E)(6).

32. Within one hundred fifty (150) days after Defendant SPLE's receipt of entry of

this Consent Order and after making the determination required by Paragraph 31 above,

Defendant SFJ_F shall submit a Ground Water Quality Assessment Report in accordance with

Ohio Adm. Code 3745-27-10(F)(7).

33. Upon Defendant SELF's receipt of entry of this Consent Order, Defendant SFLF

shall properly apply the statistical method contained in the current ground water quality

assessment plan or any subsequent revisions to the ground water quality assessment plan for the

downgracflent wells to comply with Ohio Adm. Code 3745-27-10(C)(6) including conducting

any statistical analyses of arsenic and nickel data utilizing the lowest PQL reliably achievable by

the laboratory as the statistical limit to comply with Ohio Adm. Code 3745-27-10(C)(7)(e).

34. Within three hundred thirty (330) days after Defendant SELF's receipt of entry of

this Consent Order, Defendant SELF shall submit a corrective measures plan in compliance with

Ohio Adm. Code 3745-27-10(F), unless otherwise specified in paragraph (E)(8) or (E)(9) of

Ohio Adm. Code 374527-10.

35. The detection and assessment monitoring rules are self-implementing: threfore

Ohio EPA will not need to approve documents listed in paragraphs 30 through 32. In the event

that Ohio EPA notifies Defendant SFLF of deficiencies in any of the documents which

Defendant SFLF is required to submit under the terms of Paragraphs 30 - 36 of this Consent

Order, Defendant SFLF shall, within sixty (60) days of the date of Ohio EPA's comment

letter(s), revise such document(s) in accordance with Ohio EPA's comments and the rules, unless

the parties agree in writing to an alternative schedule. Notwithstanding the foregoing, nothing in

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this Paragraph shall limit, or be construed to limit, the authority the Ohio EPA may have to take

action against Defendant SFLF for alleged violations that occur at the Facility after the entry of

this Consent Order.

36. In the event that Ohio EPA notifies Defendant SFLF of deficiencies in the

docu.merit required in paragraph 33 above, Defendant SFLF shall, within sixty (60) days of the

date of Ohio EPA's notice of deficiency, revise such document(s) in accordance with Ohio

EPA's continents, unless the parties agree in writing to an alternative schedule. Ohio EPA may

approve of the above plans with modifications and/or conditions, to the extent it is authorized to

do so within its rules, Defendant SFLF does not waive any right it may legally have to appeal

such an action of the Ohio EPA.

If subsequent laws and rules are passed or adopted that change or implement the

requirements set forth in any portion of Paragraphs 30-36, these laws and rules shall supersede

that paragraph which is changed. The remainder of the Consent Order shall remain in effect.

VI. CIVIL PENALTY

37. Pursuant to R.C. Chapter 3734, Defendant SFLF is enjoined and ordered to pay to

the State of Ohio a total civil penalty in the amount of Seven Hundred and Fifty-Two Thousand

Dollars ($752,000.00) into the account set up b y Ohio EPA pursuant to RC. 3734.28.1. The

total civil penalty shall be paid in accordance with the following schedule:

- One Hundred and Fifty-Two Thousand Dollars ($152,000.00) within fifteen (115) days

of the entry of this Consent Order or the approval of the initial background investigation

submittal that was made by Li'e Earth, LLC, whichever is later.

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- One Hundred Thousand Dollars ($100,000.00) within six (6) months of the entry of

this Consent Order or the approval of the initial background investigation submittal that was

made by Live Earth, LLC, whichever is later.

- One Hundred Thousand Dollars ($100,000.00) within twelve (12) months of the entry

of this Consent Order or the approval of the initial background investigation submittal that was

made by Live Earth, LLC, whichever is later.

- One Hundred Thousand Dollars ($100,000.00) within eighteen (18) months of the entry

of this Consent Order or the approval of the initial background investigation submittal that was

made by Live Earth, LLC, whichever is later.

- One Hundred Thousand Dollars ($100,000.00) within twenty-four (24) months of the

entry of this Consent Order or the approval of the initial background investigation submittal that

was made by Live Earth, LLC, whichever is later.

- One Hundred Thousand Dollars ($100,000.00) within thirty (30) months of the entry of

this Consent Order or the approval of the initial background investigation submittal that was

made by Live Earth, LLC, whichever is later.

One Hundred Thousand Dollars ($100,000.00) within thirty-six (36) months of the entry

of this Consent Order or the approval of the initial background investigation ubmittal tat was

made by Live Earth, LLC, whichever is later.

Payments shall be made by certified check made payable to "Treasurer, State of Ohio."

The certified checks shall be submitted to Martha Sexton or her successor, Paralegal, Office of

the Attorney General of Ohio, Environmental Enforcement Section, 30 East Broad Street, 25th

Floor, Columbus, Ohio 432153400. The memoranduni portion of the checks, or some other

prominent location on the transmittal letters or documentation, shall include a reference to

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"Sunny Farms Landfill Civil Penalty" A copy of each letter arid check shall be sent to Ohio

EPA, Division of Solid and Infectious Waste Management, Supervisor, Systems Management

Unit, 50 West Town Street, Suite 700, Columbus Ohio 43215.

38. Pursuant to R.C. 3704.06, Defendant SFLF shall pay to the State of Ohio a civil

penalty of $98,000.00. Of this amount, Defendant SFLF is ordered to pay, within fifteen (15)

days of the entry of this Consent Order or the approval of the initial background investigation

submittal that was made by Live Earth, LLC, whichever is later, $78,400.00 by delivering a

cashier's or certified check payable to the order of "Treasurer, State of Ohio" to Martha Sexton,

Paralegal, or her successor, Office of the Attorney General of Ohio, Environmental Enforcement

Section, 30 East Broad Street, 25 th Floor, Columbus, Ohio 43215-3400.

39. As a Supplemental Environmental Project, Defendant SFLF shall pay

$19,600.00 of the total civil penalty referenced in paragraph 38 within fifteen (15) days of entry

of this Consent Order or the approval of the initial background investigation submittal that was

made by Live Earth, LLC, whichever is later, to the Clean Diesel School Bus Program

established by the Director of Ohio EPA for the purpose of installing, in accordance with Ohio

EPA guidelines, diesel particulate filters for school buses operated by school districts in the Stale

of Ohio Money in me fund shall be made available to school districts in accordance with a grant

established by the Director of Ohio EPA. Defendant SFLF shall make payment by cashier's or

certified check made payable to "Treasurer, State of Ohio" and submitted to Martha A. Sexton,

Paralegal, or her successor, Office of the Attorney General of Ohio, Environmental Enforcement

Sections 30 East Broad Street, 25th Floor, Columbus, Ohio, 43215-3400. The check shall

specify that such monies are to be deposited into the fund established by Ohio EPA for the Clean

Diesel School Bus Program by writing "Fund 5CDO" on the memo line of the check-

1535313 v-01 \119031.000] 16

Jul-23-08 02:51pm From-ATTORNEY GENERAL/EES

6146441926 T-072 P.018/026 F-190

40. Compliance with Paragraphs 37-39 above shall be a full accord and satisfaction of

the State of Ohio's civil and administrative penalty claims against Defendants for the violations

alleged in Plaintiffs Amended Complaint and referenced i n this Consent Order.

VU. STIPULATED PENALTIES

41. In the event that Defendant SFLF fails to comply with any of the requirements of

Section V, VI, and XI (Paragraph 53 only) of this Consent Order, Defendant SFLF shall

immediately and automatically be liable for and pay a stipulated penalty in accordance with the

following schedule:

A. Defendant SFLF shall pay two hundred fifty dollars ($250.00) per day foreach day any requirement of this Consent Order is violated up to the firstthirty (30) days of violation;

B. For each day any requirement of this Consent Order is violated, betweenthirty (30) days and ninety (90) days of violation, Defendant SFLF shallpay five hundred dollars ($500.00) per day;

C. For each day any requirement of this Consent Order is violated, greaterthen (90) days of violation, Defendant SFLF shall pay seven hundred fiftydollars ($750.00) per day.

Stipulated penalties shall not, however, be due and payable during the resolution, pursuant to the

Dispute Resolution provisions outlined in Section XI of this Consent Order, of any dispute

asociatecL•withaetions taken by Defendant SFLF pursuant to Section V, Paragraphs 14, 15, 16,

and 17 of this Consent Order until the events described in Section XI, Paragraph 53 occur.

Stipulated penalties due under this Consent Order shall be paid by certified check or money

order payable to "Treasurer, State of Ohio' and mailed to Martha Sexton or her successor,

Paralegal, Office of the Attorney General of Ohio, Environmental Enforcement Section, 30 East

Broad Street, 25th Floor, Columbus, Ohio 43215-3400.

153533 vOl \ 119031.0001 17

Jul-23-09 02:51pm From-ATTORNEY GENERAL/EES 6146441926 1172 P.019/026 F-190

VIII. NOTICES.

42. All documents required to be submitted to Ohio EPA or Defendants under this

Consent Order shall be submitted to the following, or their successors:

As to Plaintiff:

Ohio Environmental Protection AgencyNorthwest District OfficeSolid Waste Supervisor347 North Dunbridge RoadBowling Green, Ohio 43402

As to Defendant SFLF:

Sunny Farms Landfill LLCdo Christopher M. ValerianLive Earth LLC6140 Parkland Blvd.#300Mayfield Heights, OH 44124

With a copy to:

Shane A. Farolino, Esq.Roetzel & Andress, LPA222 South Main StreetAkron, 01-1 44308

43. Any Party may change the name and/or address of its contact person(s) by

sehdiiig written notice to the other parties. .•. . I ... , .

IX. TERMINATION

44. No earlier than (a) two (2) years after Defendant SFLF achieves compliance with

Section. V of this Consent Order; and (b) after Defendant SFLF has paid all civil penalties due

hereun.der, Defendant S1'LF may move the Court, pursuant to Rule 60(13) of the Ohio Rules of

Civil Procedure, to terminate this Consent Order. Plaintiff takes no position with regard to such

motion at this time, and reserves its rights to oppose the motion. Termination of any or all of the

153533v_01\119031.000I 18

Jul-23-08 02:51p,n From— ATTORNEY GEMERAL/EES

6146441926 1-072 P.020/026 F-190

provisions of this Consent Order may also be granted upon joint motion of the parties.

Notwithstanding the foregoing, the parties acknowledge that the Ohio Attorney General's Office

and the Ohio EPA are currently reviewing a background investigation application that was filed

on behalf of Live Earth, LLC and Christopher M. Valerian seeking approval from the agencies of

the acquisition of Sunny Farms Landfill, LLC by Live Earth, LLC. The parties further

acknowledge, understand and agree that, in the event that Live Earth, LLC and/or Christopher M.

Valerian are not approved by the agencies, within thirty (30) days of the Effective Date of this

Consent Order, to acquire Sunny Farms Landfill, LLC and/or operate the Facility, this Consent

Order shall terminate immediately and in its entirety and be deemed null and void thereafter, and

the par-ties shall have no further liability, obligations or responsibility under this Consent Order

whatsoever. The parties agree that if Live Earth, LLC and/or Christopher M. Valerian are not

approved by the agencies, within thirty (30) days of the Effective Date of this Consent Order,

and the Consent Order is terminated, the underlying action and the claims referenced in the

state's Complaint shall remain in effect against Defendant SFLF and Regus.

45. Regardless of the previous paragraph, at any point in the future, if the

requirements contained in Paragraphs 14, 15, 18, 19, 21, 22, and 23 are included in the owner's

and/or operator's license for the Facility, Defendant SFLF. .d its succsspr/assigns agree that

these requirements are reasonable and that they will not challenge said requirements.

X. POTENTIAL FORCE MAJEURJ

46. If any event occurs which causes or may cause a delay in Defendants compliance

with any requirement of this Consent Order, Defendants shall notify Ohio EPA in writing within

fourteen (14) days from when the Defendants knew, or by the exercise of reasonable due

diligence should have known of the event, describing in detail the anticipated length of the delay,

135313 y_0 \ 119031.0001 19

J.il-23-08 02:51pm From-ATTORNEY GENERAL/EES

6146441926 T-072 P021/026 F-190

the cause or causes of the delay, and the measures taken or anticipated to be taken by Defendants

to prevent or minimize the delay. Financial hardship and/or inability to pay, and any failure of

either Defendants to take actions necessary to carry out the requirements of this Consent Order

because of financial hardship and/or inability to pay, shall not be considered force majeure

events. If Defendants fail to give notice of a potential force majeure event to Ohio EPA as

required under this Paragraph, Defendants may not assert a potential force rnajeure defense with

respect to the event in question.

47. In any action by Plaintiff to enforce any of the provisions of this Consent Order,

Defendants may raise at that time the question of whether it is entitled to a defense that its

conduct was caused by circumstances beyond its control such as, by way of example and not

limitation, acts of God, acts of war, and civil disturbances. While Plaintiff does not agree that

such a defense exists, it is, however, agreed to by Defendants and Plaintiff that it is premature at

this time to raise and adjudicate the existence of such a defense, and that the appropriate time to

adjudicate the existence of such a defense is at the time Plaintiff initiates an action to enforce the

provisions of this Consent Order.

XLI)ISPUTE RESOLUTION

48. This Dispute Resolution Section shaP only be appb.cable to the following portions

of this Consent Order: Section V, Paragraphs 14, 15, 16, 17, and 18.

49, The Facility Manager and Environmental Specialist, Division of Solid and

Infectious Waste Management, Northwest District Office ("DSIWMJNWDO") assigned to the

Facility shall, whenever possible, operate by consensus. In the event that a disagreement exists

about either the adequacy or disapproval of any work plan, report, or other item required to be

submitted by Defendant SFLF pursuant to this Consent Order, any action taken by Defendant

1535313v_01\119031.0001 20

JI-23-08 02:51pm From-ATTORNEY GENERAL/EES 6146441926

T-072 P.022/026 F-190

SELF pursuant to Section V, Paragraphs 14, 15, 16, 17, & 18 of this Consent Order, then the

Facility Manager and Environmental Specialist, DSIWMINWDO assigned to the Facility shall

have fifteen (15) days from the date the dispute arises to collaborate in good faith in an attempt

to resolve the differences. The dispute arises when either the Environmental Specialist,

DSIWM/NWDO assigned to the Facility provides a brief written notice of dispute to Defendant

SFLF' s Facility Manager, or Defendant SELF's Facility Manager provides a brief written notice

of dispute to the Environmental Specialist, DSIWM/NWDO assigned to the Facility. This

fifteen (115) day period may be extended by mutual agreement of the parties, up to an additional

seven (7) days.

50. In the event that the Facility Manager and Environmental Specialist,

DSIWMíNWDO assigned to the Facility are unable to reach consensus on the dispute, then each

party shall reduce his or her position to writing within fifteen (15) days of the end of the good

faith negotiations referenced in the preceding paragraph. Those written positions shall be

immediately exchanged by the Facility Manager and Environmental Specialist, DSIWMINWDO

assigned to the Facility and the dispute shall be referred to the Assistant Chief, DISWM Central

Office for a determination as to whether the waste classification of the Environmental Specialist,

DSIWM/NWDO was lawful and reasonable. EoUowing the exchnge of written positions and

the referral of the dispute to the Assistant Chief, DSIWM Central Office for resolution, the

parties shall have an additional seven (7) days to resolve their dispute. If the Assistant Chief,

DSIWM Central Office concurs with the position of Defendant SELF, then the disagreement

shall be resolved in a manner consistent with Defendant SFLrs position. If necessary, either

party may petition this Court for modification of the Consent Order to include any required

extensions of time or variances of required work.

1535313v01\119031,0O0 21

JuI-23-08 02:51pi From-ATTORNEY ENERAL/EES 6146441926 T072 P.023/026 F190

51, If Ohio EPA does not concur with the position of Defendant SFLF, the Assistant

Chief, DSIWM Central Office will notify Defendant SFLF in writing. Upon receipt of such

written notice, the parties shall have seven (7) days to forward a request for resolution of the

dispute, along with each party's written statement of the dispute, to the Chief, DSIWM Central

Office for a determination as to whether the waste classification of the Environmental Specialist,

DSIWMJNWDO, was lawful and reasonable. The statements of dispute shall be limited to a

concise presentation of each party's position on the dispute. The Chief, DSIWM Central Office

will resolve the dispute based upon, and in a manner consistent with, this Consent Order; Ohio

law, including R.C. Chapters 3714 and 3734, and the rules and regulations promulgated

thereunder; and other appropriate state and federal laws. N

52, Defendant SFLF waives any right it may legally have to appeal, challenge, or

contest the final decision and determination of the Chief, DSIWM Central Office.

53. Upon the issuance of a decision of the Chief, DSIWM Central Office, Defendant

SFLF shall correctly re-log the load of waste and shall pay the corrected fee amount within seven

(7) days. If payment is not timely made pursuant to this Paragraph, Defendant SFLF shall be in

violation of this Consent Order and the stipulated penalty provisions in Section VII shall be

instituted and stipulated penalties shall be •calculated from The date seven (7) days after

Defendant SFLF receives notice of the decision by the Chief, DSIWM Central Office,

54. Unless otherwise expressly provided for in this Consent Order, the procedures of

this Section XI shall be the exclusive mechanism to resolve disputes associated with actions

taken by Defendant SFLF pursuant to Section V, Paragraphs 14, 15, 16, 17, and IS of this

Consent Order.

1535313 v_01 \ 119031.0001 22

Jul-23-08 02:52pm

From —ATTORNEY GENERAL/EES

6146441926

T-072 P.024/026

F-190

XII. EFFECTIVE DATE

55. This Consent Order shall become effective upon the date of its entry by the Court.

XIII. COURT COSTS

56. Defendants are hereby ordered to pay the court costs of this action. Each party

shall be responsible for their own attorneys' fees and consultants' fees associated with this

action.

XIV. IUTENTIQN OF JURISDICTION

57, This Court shall retain jurisdiction over this action for the purposes of making any

order or decree which it deems appropriate to carry out this Consent Order.

XV. SIGNATORIES

58. Each of the undersigned representatives for the Parties represents that he/she is

fully authorized to enter into the terms and conditions of this Consent Order and legally bind the

respective party to this document.

XVI. ENTRY OF CONSENT ORDER AND FINAL JUDGMENT BY CLERK

59. upon the signing of this Consent Order by the Court, the clerk is hereby directed

to enter it upon the journal. Within three (3) days of entering the judgment upon the journal, the

clerk is hereby directed to serve upon all Parties notice of the judgment and its date of entry upon

the journal in the manner prescribed by Rule 5(B) of the Ohio Rules of Civil Procedure and note

the service in the appearance docket.

IT IS SO ORDERED.

DAT,f /3f) cd_ -

JUDGE, SENECA COUNTYCOURT OF COMMON PLEAS

1535313 v_01 \ 119031.0001 23

Jul-23-08 02:52pin From—ATTORNEY GENERAL/EES

6146441926 1-072 P.025/026 F-190

APPROVED BY:

NANCY ROGERS

SUNNY FARMS LANDFILL, LLCATTORNEY GEN

OF OHIO

BY:

By:GORDON REGERAuthorized Representative ofRegus Industries, LLC

CHRISTOPHER M. VALERIANAuthorized Representative ofSunny Farms Landfill, LLC

A. FAROLIN 040310)Roerzel & Andress, LPA222 South Main StreetAkron, OH 44308Telephone: (330) 376-2700Facsimile: (330) 376-4577E-Mail: sfarolino@ralaw.com

ROBERT B. CASARONA (0036715)Roetzel & Andress, LPAOne Cleveland Center1375 E. Ninth Street, Tenth FloorCleveland, OH 44114Telephone: (216) 623-0150i'acsimiie; (216) 623-0134E-Mail: rcasaxona@ralaw.com

ICHOLI B4N(079570)Assistant Attorney GeneiiUEnvironmental Enforcement Section30 East Broad Street, 25th FloorColumbus, OH 43215-3400Telephone: (614) 466-2766Facsimile: (614) 644-1926E-Mail:

A ttorney for Plaintiff

REGUS INDUSTRIES, LLC

Attorneys for Defendant Sunny FarmsLandfill, LLC

153513'P_01\ 11031.0001 24

Jui-23-08 02:52prn From — ATTORNEY OENERAL/EES

6146441926 1-072 P.026/026 F-190

APPROVED BY:

NANCY ROGERS

SUNNY FARMS LANDFILL, LLCATTORNEY GENERAL OF OHIO

BY;CHRISTOPHER M. VALERIANAuthorized Representative ofSunny Farms Landfill, LLC

SHANE A. FAROLINO (0040310)Roetzel & Andress, LPA222 South Main StreetAkron, O} 44308Telephone: (330) 376-2700Facsimile: (330) 376-4577E-Mail: sfarolino@ralawcom

ROBERT B. CASARONA (0036715)Roetzel & Andress, LPAOne Cleveland Center1375 B. Ninth Street, Tenth FloorCleveland, OH 44114Telephone: (216) 623-0150'Factmile: (216) 623-c . 134E-Mail: rcasarona@ralaw.com

NICHOLAS J. BRYAN (0079570)Assistant Attorney GeneralEnvironmental Enforcement Section30 East Broad Street, 25th FloorColumbus, OH 43215-3400Telephone: (614) 466-2766Facsimile: (614) 644-1926E-Mail:

Attorney for Plaintiff

REGUS INDUSTRIES, LLC

GORDON REGERAuthorized Representative ofRegus Industries, LLC

Attorneys for Defendant Sunny FarmsLandfill, LLC

153513v01\119031.0001 24